Parliamentary Sovereignty Essay
With reference to relevant domestic case law outline the “mechanisms” adopted by the British Courts to maintain the Doctrine of Parliamentary Sovereignty in the context of applying European Law. Particular reference should be made to the cases of Bulmer v Bollinger and Factortame. Parliamentary sovereignty is a fundamental principle in the constitution of the United Kingdom. It is where the Parliament is the supreme legal authority, which has the power to create or end any law.
Generally, the courts cannot overrule its legislation and no Parliament can pass a law that a future Parliament cannot change. In the British constitution, a statute is generally regarded as the highest form of the law, therefore Parliament is seen as the sovereign law maker. However the doctrine of Parliamentary sovereignty has been altered and limited by the UK decision to become a member of the European Community in 1973 when the European Communities Act 1972 came into force.
Parliament must now legislate consistently with European Community Law. The terms of the European treaties as interpreted by the European Court of Justice require member states to limit their sovereignty, by Parliament giving direct effect and primacy to EU Law. The European Court of Justice states that European Community Law should be enforceable in the courts of member states and that EU law prevails domestic law of member state, which includes the United Kingdom.
The ECJ, as the judicial institution of the Community, is the backbone of that system of safeguards. It is responsible for interpreting questions of EC law and provision is made in the Treaty for references to the ECJ by national courts. Decisions of the ECJ, upon a reference, are reached by majority vote and are binding on all domestic courts of all Member States. Under Article 234 the ECJ has achieved the principle of supremacy and its uniform application in all Member States when Community law may be in conflict with domestic legislation.
The ECH, as the guardian of legality and instrument of cohesion within the Community, has from the start been in a strong position to define the status of Community law and to gibe it precedence when in conflict with the national legal systems of the various Member states. The first case where the Court made a statement on the nature of European law is the famous case of Van Gend en Loos dealing with the principle of direct effect of EC Treaty provisions and the degree to which individuals can rely on such terms to hallenge measures of national law. It was in a second important case, two years later, however, that the ECJ expanded on its constitutional theory of the Community, declaring again that the states had created a sovereign Community by limiting their own sovereign rights. The case was Costa v Enel, the Court basically decided that community law had supremacy over national law. To this day the judgement is the bedrock of the importance of Community law in all Member States of the European Union.
Without this decision Community law would have remained merely international law. Not until the doctrine of supremacy did Community law become truly ‘supranational’ as intended in the European treaties. It was in Bulmer v Bollinger that Lord Denning stated: “The Treaty of Rome is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. ” The early generous and realistic approach was seen in the case of Macarthys v Smith (1981) where Lord Denning discussed the feature between mere inconsistencies and deliberate derogation.
Where the incompatibility is inadvertent, he suggested that English Courts should apply EC law, on the assumption that Parliament anticipated to perform its treaty obligations. On the other hand, where the incompatibility was deliberate, he was of the belief that English law should triumph. In this case Lord Denning asserted that “it has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it. ” However, it was not until the Factortame litigation that the true implication on parliamentary sovereignty became noticeable.
The cases of R v Secretary of State for Transport Ex Parte Factortame (1989), changed Lord Denning’s principle. In this case the UK courts applied for an Article 177 reference. Due to the extensive time it take to respond to reference, the UK applied for an additional ruling asking if they could in the meantime still apply the Act as it conflicted with Articles 52 and 221 of the Treaty of Rome. The ECJ ordered the UK to temporarily suspend the 1988 Act, which the UK parliament had not done before. Therefore, this relentlessly undermined the supremacy of the doctrine of parliamentary sovereignty.